Law enforcement officials in Colorado and Washington will soon be grappling with the question of how to police illicit sales and production of cannabis after the legal cannabis market is in place. The logical approach would be to prioritize illicit market enforcement immediately after legalization takes effect. The enforcement and resultant busts would be coupled with press releases full of head-shaking quotes along the lines of “I can’t understand why people keep engaging in crime now that recreational marijuana is legally available”. Such tactics would help undermine the black market by driving people into the legal cannabis market.

However, once there is a legal market in a drug, enforcement against illegal markets becomes much more challenging. When a drug is illegal, mere possession is prima facie evidence of crime. But when the substance can be legally possessed, law enforcement must catch someone in the act of illegally selling, buying or producing the substance to make an arrest, which is much more difficult.

Further, smart criminals will seek legal cover, making law enforcement’s task even more challenging. If you operate a regional marijuana distribution ring for example, you’d be well advised to buy a license to operate legally in Colorado or Washington. Your subsequent possession of marijuana and associated equipment will thus appear legal sans some careful investigative spadework, which police may not have the resources to undertake.

Barring some unusual foresight by and targeted resources for law enforcement in Washington and Colorado, risk of arrest will probably drop rather than rise in the illegal cannabis market post-legalization. Reduced risk of arrest will make the black market less unappealing to customers than it was in prior years. This drop in legal risk will help the black market survive, particularly as its prices will be likely be dropping at the same time.

[Cross-posted at The Reality-based Community]

Keith Humphreys

Keith Humphreys is a professor of psychiatry at Stanford University. He served as a senior policy advisor at the White House Office of National Drug Control Policy from 2009 to 2010.